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GAO-10-58R:
United States Government Accountability Office:
Washington, DC 20548:
October 6, 2009:
Congressional Committees:
Subject: Civilian Agencies' Development and Implementation of
Insourcing Guidelines:
Federal agencies rely on a multisector workforce composed of federal
employees and contractor personnel to perform services as they carry
out their missions. Determining whether to obtain services through
insourcing with current or new federal employees, outsourcing with
private sector contractors, or cosourcing with a combination of the two
is an important economic and strategic decision critical to the federal
government's effective and efficient use of taxpayer dollars. The
executive branch has encouraged federal agencies since the mid-1950s to
obtain commercially available services from the private sector when
outsourcing is cost-effective. In the last 5 fiscal years, civilian
agencies have on average annually obligated about $100 billion to
obtain a range of services from contractors. However, in March 2009,
the President issued a memorandum on government contracting that, among
other matters, expressed concern about the federal workforce as to
whether agencies have become overreliant on contractors and have
appropriately outsourced services. In particular, the President noted
that the line between inherently governmental functions--those that
must be performed by federal employees--and commercial activities that
may be contracted for has been blurred. In the memorandum, the
President directed the Office of Management and Budget (OMB) to lead a
series of contracting-related efforts, including clarifying when
outsourcing for services is and is not appropriate.
Congress, also concerned with the federal workforce, in March 2009
enacted section 736 of the Omnibus Appropriations Act, 2009,[Footnote
1] which requires federal agencies, with the exception of the
Department of Defense (DOD), to devise and implement guidelines for
insourcing new and contracted-out functions by mid-July 2009. The
statute further requires that we report on the implementation of
section 736. In response, we identified (1) the actions taken by OMB to
assist affected agencies as they develop insourcing guidelines and (2)
the status of selected civilian agencies' efforts to develop and
implement insourcing guidelines.
To address our objectives, we interviewed and reviewed information
provided by officials from OMB and nine agencies on the status of their
insourcing efforts pursuant to section 736. The nine agencies were
selected because they collectively accounted for about 80 percent of
the fiscal year 2008 funds obligated on service contracts by civilian
agencies.[Footnote 2] In addition, we reviewed OMB's guidance issued in
July 2009 as to whether it is consistent with statutory requirements
for executive agencies' guidelines. We conducted our work from July
2009 to October 2009 in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings based on our audit objectives. We
believe that the evidence obtained provides a reasonable basis for our
findings based on our audit objectives.
Results in Brief:
Although section 736 does not specify a role for OMB in the development
and implementation of the civilian agency insourcing guidelines, OMB
has initiated a number of efforts in response to the President's March
2009 memorandum on government contracting and section 736. In July
2009, after coordinating with key agencies, OMB issued guidance to
facilitate the management of the federal government's multisector
workforce through an approach that (1) provides an initial framework
for planning and managing the multisector workforce that is built on
strategic human-capital planning, (2) requires agencies to conduct a
multisector human-capital analysis pilot, and (3) provides criteria on
how agencies can use insourcing as a tool to manage their multisector
workforces. Specifically, the insourcing criteria explain what actions
agencies are to take to ensure that they are giving "consideration" and
"special consideration" to the use of federal employees, as required
under section 736. The OMB criteria specify that agencies generally
should conduct cost analyses as part of the insourcing process but note
that there may be circumstances where full cost analyses are
unnecessary. How cost analyses are to be conducted and what factors are
to be considered in the analyses are left to the agencies. OMB is
considering what its future role regarding insourcing will be but
currently does not plan to formally approve agency insourcing
guidelines. It does, however, recognize that its insourcing criteria
are likely to be the first step of an iterative process that may be
revisited periodically due to the complexity of addressing the
multisector workforce, possible changes resulting from its review of
the term "inherently governmental," and lessons learned from the
multisector workforce pilots.
None of the nine civilian agencies we visited met the statutory date
for developing and implementing their insourcing guidelines and
procedures. Although one agency issued preliminary guidelines, and two
others had drafted but not issued their guidelines as of our review,
most of the agencies' efforts are still in their early stages. Agency
officials told us that they delayed their efforts to develop or issue
guidelines as they were waiting for OMB's July guidance to ensure their
guidelines were consistent, and some officials noted that they are
waiting on additional direction from OMB, particularly as it relates to
the definition of inherently governmental functions and when it is
appropriate to outsource. Agency officials also identified a number of
challenges relating to insourcing such as the complexity of the issue
within the broader context of managing the multisector workforce, the
time and level of effort involved in coordinating relevant agency
functions, and continued uncertainty about the meaning of key terms,
such as "consideration" and "special consideration." Agency officials
also made some suggestions, such as multiagency working groups to share
lessons learned, that they believe may help them in their future
insourcing efforts. OMB advised us that the working group on multi-
sector workforce management will provide ongoing support to agencies
and that OMB will continue to provide information to agencies in
response to inquiries.
We provided a draft of this correspondence to OMB for its review and
comment. OMB provided technical comments that we incorporated into the
final version as appropriate. Additionally, the nine agencies we met
with were given the opportunity to provide comments on a fact sheet
containing information from a draft of this correspondence specific to
their agency. Seven of the agencies had no comments on the information
in the fact sheets and two agencies provided technical comments that
have been incorporated into this correspondence.
Background:
Section 736 of the Omnibus Appropriations Act, 2009, requires the heads
of executive agencies, except DOD, subject to the Federal Activities
Inventory Reform (FAIR) Act of 1998[Footnote 3] to devise and implement
insourcing guidelines and procedures by July 9, 2009. The statute
specifies that the guidelines and procedures are to ensure that
"consideration" is given to using, on a regular basis, federal
employees to perform new functions and functions that are performed by
contractors and could be performed by federal employees. The statute
further requires that the guidelines provide for "special
consideration" to be given for using federal employees to perform any
function that is:
* performed by a contractor and:
- has been performed by federal employees at any time during the
previous 10 years;
- is a function closely associated with the performance of an
inherently governmental function;[Footnote 4]
- has been performed pursuant to a contract awarded on a noncompetitive
basis; or:
- has been performed poorly, as determined by a contracting officer
during the 5 years preceding the date of such determination, because of
excessive costs or inferior quality; or:
* a new requirement, with particular emphasis given to a new
requirement that is similar to a function previously performed by
federal employees or is a function closely associated with the
performance of an inherently governmental function.
In addition, the statute provides that the guidelines and procedures
may not include any specific limitation on the number of functions or
activities that may be converted to performance by federal employees
and excludes certain functions from public-private competition until
certain conditions are met.
Section 736 does not apply to DOD. However, section 324 of the National
Defense Authorization Act for Fiscal Year 2008[Footnote 5] provided
essentially the same requirement for DOD to develop and implement
insourcing guidelines. In April 2008, DOD issued its initial insourcing
guidelines. Then on May 28, 2009, DOD issued implementing guidance for
the insourcing of contracted services.[Footnote 6] The May 2009
guidance explains that it is designed to assist DOD components as they
develop and execute plans to decrease funding for contract support and
increase funding for approximately 33,400 new civilian manpower
authorizations. Among other matters, the guidance provides a process
the components are to follow in prioritizing and reviewing contracted
services for possible insourcing and the steps they are to follow once
the decision is made to insource a function.
In March 2009, the President issued a memorandum that identified a
number of concerns related to government contracting, explicitly noting
that government outsourcing for services raises special concerns.
[Footnote 7] The memorandum directed the Director of OMB, in
collaboration with heads of executive agencies and other officials,
[Footnote 8] to develop and issue by July 1, 2009, governmentwide
guidance to assist agencies in reviewing and creating processes for
ongoing reviews of existing contracts to identify contracts that are
wasteful, inefficient, or not otherwise likely to meet the agency's
needs and to formulate corrective actions. Noting that agencies must
operate under clear rules, the President's memorandum further directed
that by September 30, 2009, OMB issue guidance to clarify when
governmental outsourcing for services is and is not appropriate.
OMB's Insourcing Efforts and Criteria:
Although section 736 of the Omnibus Appropriations Act, 2009, did not
specify any responsibilities for OMB, the office has taken actions to
assist agencies in the development of their insourcing guidelines
within the context of providing overall guidance on managing the
multisector workforce. On July 29, 2009, OMB issued guidance in
response to the President's memorandum as well as section 736 that
addresses achieving the best mix of contractors and federal employees
and requires agencies to begin the process of developing and
implementing policies, practices, and tools for managing the
multisector workforce.[Footnote 9] The memorandum outlines a three-
prong approach that (1) provides an initial framework for planning and
managing the multisector workforce built on strategic human-capital
planning, (2) as part of a planning pilot, requires each agency to
conduct a multisector human-capital analysis of an organization,
program, project, or activity where there are concerns about reliance
on contractors and report on the pilot in April 2010, and (3) provides
criteria on how agencies can use insourcing as a tool to manage their
multisector workforce. Also, as part of this guidance, OMB discussed
its efforts to review the definition of an inherently governmental
function within the context of its efforts to clarify when governmental
outsourcing for services is and is not appropriate.[Footnote 10]
The insourcing criteria issued by OMB in July 2009 are intended to
provide the civilian agencies with a framework for consistent and sound
application of the statutory requirements as the agencies develop their
insourcing guidelines. OMB developed the criteria in consultation with
a working group composed of officials from some of the affected
agencies. According to a senior OMB official, OMB established four
agency working groups to address specific issues related to the
President's March 2009 memorandum.[Footnote 11] He explained that the
working group responsible for addressing multisector workforce issues
helped to develop the insourcing criteria since OMB considers
insourcing one of many tools available to manage the multisector
workforce. OMB also involved DOD in its efforts to develop criteria, in
part to benefit from DOD's experience in developing and implementing
insourcing guidelines and to promote consistency across all agencies.
OMB's July 2009 criteria generally address the provisions of section
736 and provide a general framework for agencies to craft their own
insourcing guidelines. The criteria consist of four sections that
address different aspects of the statute and describe circumstances and
factors agencies should consider when identifying opportunities for
insourcing. See table 1 for a description of OMB's insourcing criteria.
Table 1: OMB's Criteria for Insourcing under Section 736:
Key sections: General Management Responsibilities;
Agency responsibilities/actions and factors to consider:
* review contractor performance on an ongoing basis and where a
determination is made that contractors are performing inherently
governmental responsibilities, insource such work on an accelerated
basis;
* monitor internal human-capital capacity to minimize the risks
associated with overreliance or improper reliance on contractors;
* ensure that there are sufficient resources to manage and oversee
contractors.
Key sections: General Consideration of Federal Employee Performance;
Agency responsibilities/actions and factors to consider:
* augment existing management reviews when appropriate, to consider and
evaluate opportunities to improve performance with the use of federal
employees; evaluations should;
- consider opportunities for new and already-contracted work;
- generally include a cost analysis that addresses the full cost of
performance and provides "like comparisons" of relevant costs to
determine the most cost-effective source of support;
* situations when insourcing may be justified without a full cost
analysis:
- to establish or build internal capacity or maintain control of an
agency's mission and operations;
- to perform a function that is closely associated with an inherently
governmental function and in-house performance is necessary for an
agency to maintain control of its mission and operations; or;
- to avoid the compromise of a critical agency or administration
policy.
Key sections: Special Consideration of Federal Employee Performance;
Agency responsibilities/actions and factors to consider:
* go beyond existing agency management reviews and evaluate the
specific function to be performed prior to the pursuit or nonpursuit of
a contract action; key issues and actions for evaluations;
- if an agency determines that contractor performance causes the agency
to lack sufficient internal expertise to maintain control of its
mission and operations, then the agency is to take actions to obtain
needed in-house capacity;
- if a preliminary analysis suggests that public-sector performance is
more cost-effective and it is feasible to hire federal employees for a
particular function, the agency is to initiate a more-detailed analysis
of insourcing options;
- extent of analysis should generally be commensurate with the size and
complexity of the function in question and its importance to the
agency's mission;
- cost analysis should address the full costs of government and private-
sector performance;
- insourcing should not be used unless performance and risk
considerations in favor of federal employee performance will clearly
outweigh cost considerations.
Key sections: Competition Restrictions;
Agency responsibilities/actions and factors to consider:
* reiterates restriction in section 736 from conducting public-private
competitions under OMB Circular A-76 as a prerequisite to federal
performance of certain functions.
Source: OMB.
[End of table]
According to a senior OMB official, OMB is considering what its future
role regarding insourcing will be. For example, OMB currently does not
plan to formally approve agency insourcing guidelines but will likely
play an ongoing policy role in future insourcing efforts. He added that
OMB could possibly be involved through the agency working groups, but
its specific role and extent of involvement will depend on the evolving
nature of the issue. OMB recognizes that its insourcing criteria are
likely to be the first step of an iterative process and expects to
periodically revisit the guidance due to the complexity of addressing
the multisector workforce in an ever-changing environment and culture,
the need for clarification on the meaning of terms such as "inherently
governmental," and the fact that OMB's efforts, as well as those of the
civilian agencies, are in early stages. OMB also anticipates gaining
further insight about insourcing, including an assessment of data
needs, from the pilot studies required under the broader OMB guidance
for managing the multisector workforce.
Status of Selected Agencies' Insourcing Guidelines:
None of the nine civilian agencies we visited met the statutory
requirement to develop and implement insourcing guidelines and
procedures by July 9, 2009. To date, one agency--the Department of
State--has issued what department officials characterized as
"preliminary" guidelines in late July 2009 and plans to revise its
guidelines as insourcing efforts evolve. Officials with the remaining
eight agencies informed us that they have efforts underway to develop
insourcing guidelines. However, these eight agencies are at various
stages of developing their guidelines. For example, two agencies
recently designated the offices responsible for leading the effort to
develop the guidelines and are in the process of deciding what approach
they will take. In contrast, two other agencies have drafted
guidelines, with one waiting on management approval to issue them and
the other planning to finalize its guidelines once OMB issues
additional outsourcing guidance. Table 2 gives the status of the nine
agencies' efforts to develop and implement insourcing guidelines
pursuant to section 736.
Table 2: Status of Nine Selected Agencies' Development of Section 736
Guidelines:
Department/agency: Department of Energy;
Status as of September 30, 2009: Guidelines drafted but not issued.
Expected issuance date October 16, 2009, but may change based on when
OMB issues additional guidance, which was due September 30, 2009.
Department/agency: General Services Administration;
Status as of September 30, 2009: Guidelines not drafted. Initial draft
expected in October 2009.
Department/agency: Department of Health and Human Services;
Status as of September 30, 2009: Guidelines not drafted. Plan to draft
based on additional OMB guidance and experiences with pilot study.
Department/agency: Department of Homeland Security;
Status as of September 30, 2009: Initial incremental guidelines
drafted. Expected issuance upon management approval.
Department/agency: Department of Justice;
Status as of September 30, 2009: Guidelines not drafted. Established a
working group to draft insourcing guidelines and procedures. Draft due
November 30 and will be finalized by January 30.
Department/agency: NASA;
Status as of September 30, 2009: Drafting interim guidelines. Expected
issuance at the end of October 2009.
Department/agency: Department of State;
Status as of September 30, 2009: Preliminary guidance issued on
multisector workforce requirements on July 30, 2009. Detailed
insourcing guidelines will be issued after pilot study is concluded in
April 2010.
Department/agency: Department of Transportation;
Status as of September 30, 2009: Guidelines not drafted. No timeline
given.
Department/agency: Department of Veterans Affairs;
Status as of September 30, 2009: Guidelines not drafted. Initial draft
expected in early fiscal year 2010.
Source: Cited agencies.
[End of table]
Officials with the nine agencies cited a number of reasons as to why
they did not meet the statutory deadline and have not issued final
insourcing guidelines. These reasons included, but were not limited to
the following:
* Wanting to ensure their guidelines were consistent with OMB's
guidance, which was not issued until July 2009, which caused them to
delay either finalizing or drafting their guidelines.
* Waiting for additional OMB guidance and clarification regarding
outsourcing and inherently governmental functions, which was to be
provided by September 30, 2009. Several officials stated that they
anticipate this guidance will have a significant effect on their
development and implementation of insourcing guidelines. Similarly, OMB
indicated when it provided the insourcing criteria in July 2009 that it
expected to refine the criteria as it developed guidance on when
outsourcing is and is not appropriate.
* Intending to use the results, best practices, and lessons learned
from the multisector workforce pilots to better inform their insourcing
guidelines and procedures. For example, one agency plans to use its
experience with the pilot as the basis for its final guidelines, while
another plans to issue initial guidelines to be used during the pilot
and then revise the guidelines as appropriate based on the experiences
during the pilot.
* Stressing that developing effective insourcing guidelines is complex
and involves many agency functions, including human capital,
acquisition, and finance and budget, all of which requires a great deal
of coordination and takes time. They added their ability to focus on
the development of the guidelines has been constrained by their
capacity to deal with multiple management initiatives in addition to
their regular core duties.
Insourcing Challenges:
Agency officials we met with noted that while the process of developing
insourcing guidelines can be complicated, the broader issue of
insourcing within the context of managing the multisector workforce is
complex and involves many challenges. According to agency officials,
the complex nature of insourcing and the many functional parts of an
agency that are involved require managers to share responsibility and
coordinate activities. The various functions that will be involved in
an agency's insourcing efforts--such as human capital, acquisition,
finance and budget--must be identified, as well as the roles each will
play. Officials also stated that once identified and given roles, the
functions must then work together to identify and resolve matters such
as the types of services and number of positions to be insourced; the
hiring timeline for federal employees; training and security clearance
needs; budget needs for additional resources; facilities and equipment
needs; and oversight needs and capacity. According to agency officials,
another challenge of insourcing is that it represents a major shift in
the focus and culture of the multisector workforce. Established
processes and procedures are geared toward outsourcing and shifting to
insourcing and a "total workforce" approach--that considers both
contractors and federal employees--will take time and requires
flexibility to meet the needs of an agency within an ever-changing
environment. In addition to these overarching challenges, agency
officials identified the following issues that may affect their
insourcing efforts:
* Continued uncertainty as to what is meant by terms used in section
736 and OMB's criteria such as "inherently governmental," "mission-
critical," "core competency," and "consideration" versus "special
consideration" makes it difficult to address them in agency guidelines.
However, officials we spoke with were not always in agreement regarding
the need for and level of specificity for some terms, as some officials
preferred having greater flexibility in interpreting and applying the
terms.
* Confusion as to when a cost analysis is needed and the appropriate
procedures to conduct one makes it hard to define what procedures are
necessary to sufficiently address the cost issue. OMB's criteria do not
specify the procedures for conducting a cost analysis or define what
constitutes full cost of performance. While some agency officials
thought there should be standard cost-analysis procedures, officials
with at least one agency preferred more flexibility in determining how
it should conduct cost analyses when making insourcing decisions.
* Difficulty in gathering and analyzing certain types of service-
contracting data needed for making insourcing decisions. For example,
information on the type of service contracts and the number of
contractor-equivalent personnel may not be readily available, even
though some officials indicated that such information may be needed to
review contracted-out services and make insourcing decisions. Although
one agency had already issued a data call for specific service
contracting information and was in the process of analyzing the data,
others indicated that they are waiting for the pilot programs to help
them identify what data best inform the insourcing decision-making
process.
* Limited budgets and resources may constrain insourcing efforts. For
example, if after applying its guidelines, an agency determines that a
function should be insourced and additional government employees need
to be hired, the agency must ensure the funds are available to pay for
them. There may also be a significant time lag between the decision to
insource and the process for reprogramming funds in an effective and
timely manner.
While agency officials cited many challenges to insourcing, they also
offered suggestions that they said may help them in their efforts to
address these challenges and shift the culture. These suggestions
included OMB convening ongoing, multiagency working groups to encourage
agencies to work together by sharing lessons learned and providing each
other examples of how to work through both the development and
implementation phases of insourcing plans and having a point of contact
within OMB for insourcing information. In response, OMB advised us that
the standing working group on multi-sector workforce management will
provide ongoing support as the current special working groups complete
their tasks and that OMB is continuing to provide information to
agencies to address their inquiries.
We are sending copies of this report to the Director of OMB; the
Secretaries of Energy, Health and Human Services, Homeland Security,
State, Transportation, and Veterans Affairs; the Attorney General; the
Administrators of the General Services Administration and NASA; and
interested congressional committees. In addition, the report will be
available at no charge on GAO's Web site at [hyperlink,
http://www.gao.gov].
If you or your staff have any questions concerning this report, please
contact me at (202) 512-5274. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this report. Key contributors to this report include Johana R.
Ayers, Assistant Director, Marie Ahearn, Greg Campbell, Mary Jo
Lewnard, Rae Ann Sapp, and Viraphonh Vongvanith.
Signed by:
John K. Needham:
Director Acquisition and Sourcing Management:
List of Committees:
The Honorable Daniel K. Inouye:
Chairman:
The Honorable Thad Cochran:
Vice Chairman:
Committee on Appropriations:
United States Senate:
The Honorable David R. Obey:
Chairman:
The Honorable Jerry Lewis:
Ranking Member:
Committee on Appropriations:
House of Representatives:
The Honorable Joseph I. Lieberman:
Chairman:
The Honorable Susan M. Collins:
Ranking Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The Honorable Edolphus Towns:
Chairman:
The Honorable Darrell Issa:
Ranking Member:
Committee on Oversight and Government Reform:
House of Representatives:
[End of section]
Footnotes:
[1] Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, Division D,
Title VII, Section 736.
[2] The nine agencies were the Departments of Energy, Health and Human
Services, Homeland Security, Justice, State, Transportation, and
Veterans Affairs, as well as the General Services Administration and
the National Aeronautics and Space Administration (NASA).
[3] The FAIR Act of 1998, as amended (31 U.S.C. § 501 note), requires
agencies to submit annual workforce inventories of activities that are
not inherently governmental functions. Executive agencies subject to
the FAIR Act include executive departments, such as the Department of
Homeland Security, and independent establishments, such as NASA.
[4] Section 736 provides that the term "inherently governmental
functions" has the same meaning as that in subpart 7.5 of the Federal
Acquisition Regulation (FAR), which includes extensive lists of
examples of functions considered to be and not be inherently
governmental functions. Although section 736 does not specifically
refer to it, FAR subpart 2.1 defines "inherently governmental function"
to mean "as a matter of policy, a function that is so intimately
related to the public interest as to mandate performance by government
employees" and "includes activities that require either the exercise of
discretion in applying government authority, or the making of value
judgments in making decisions for the government."
[5] National Defense Authorization Act for Fiscal Year 2008, Pub. L.
No. 110-181 § 324.
[6] DOD Memorandum, In-sourcing Contracting Services - Implementation
Guidance (May 28, 2009).
[7] Presidential Memorandum, Government Contracting, 74 Fed. Reg. 9,755
(Mar. 4, 2009).
[8] Other agency heads include the Secretary of Defense, the
Administrator of NASA, the Administrator of the General Services
Administration, the Director of the Office of Personnel Management, and
other heads of agencies the Director of OMB deems appropriate.
[9] OMB Memorandum M-09-26, Managing the Multi-Sector Workforce (July
29, 2009).
[10] OMB's multisector workforce memorandum notes that this review is
consistent with section 321 of the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417 (2008),
which requires OMB to review the definitions of "inherently
governmental function" and develop a single consistent definition for
the term.
[11] These four working groups were set up to address (1) the
definition of the term "inherently governmental," (2) managing the
multisector workforce, (3) contractor inventories and information, and
(4) cost determination.
[End of section]
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